The Pitfalls of “Do It Yourself” Estate Planning

The American Bar Association Task Force on Real Property Probate and Trust Law issued a report discussing the following shortcomings of drafting your own estate planning documents using the services of a “Do It Yourself” package. Some of those short comings are as follows.

Things are often more complicated than they seem. When a person writes their own will, often the results are not what she intended. For example, an elderly widow wants to divide her assets equally between her two adult children. Her assets consist or a house worth $500,000 and an IRA worth $500,000. She decides to write her own will giving one child the house and the other the IRA. Then after her death, it comes to light that the IRA, which has designated beneficiaries, is to be shared equally by her two children. Moreover, at the time of her death, her IRA is valued at $200,000 and the value of the house has appreciated to $600,000. So, one child receives the house and $100,000 from the IRA house, a total value of $700,000 and the second child receives $100,000 from the IRA. This was not what she intended. Having an experienced estate planning lawyer can help prevent this.

An estate planning lawyer offers more than the expertise in drafting your documents. A significant role of an estate planning lawyers is to counsel clients when making these important and personal decisions, for example, guidance on whom to choose as a guardian for minor children. While this may seem simple, it is complex decision on who is best suited to nurture children, but consideration must also be given the ability to provide financial support. Moreover, when a couple makes decisions, it may be important to have an attorney help the couple chose guardians who are acceptable to both parties.

In the event of a dispute after a person’s death, the court will often hear a wide variety of allegations about the decedent’s intentions – all from family members who have an interest in how the court will decide. This is a difficult role for a judge who will look to hear from a person who had discussion with the decedent while she was alive about how she wanted her assets to be distributed. Often, that person is the estate planning lawyer.

Technical issues with your will can render it void. A will must unequivocally state the decedent’s intentions. If you draft your own will, you might inadvertently use words which are meaningless in the probate court. For example, if you state “I would like my niece to have my car” would be an unenforceable provision. Moreover, the will must be executed in accordance with New Jersey probate and estate law in order to be admitted to probate and enforced.

“Do it yourself” will providers are not permitted to provide guidance or counsel regarding the disposition of your estate. In New Jersey, estate tax planning remains a important issue for many people. While the federal estate tax is imposed on estates in excess of $5,000,000, New Jersey imposes estate tax on estates in excess of $675,000 and also imposes inheritance tax based upon the relationship between the beneficiary and the decedent. An experienced estate planning attorney will discuss and implement options for minimizing the federal and New Jersey estate and inheritance tax, thereby increasing the amount of assets passing to the decedent’s beneficiaries.

The Task Force also discussed many more reasons which are more specific in nature, such as special needs planning, planning considerations for same-sex couples, the benefit in certain situations of disclaiming inherited property, and multi-state and international issues.

McLaughlin & Nardi’s estate planning attorneys can counsel and guide you to create and implement an estate plan which will ensure that your wishes are realized. E-mail, call 973-890-0004 or visit our website for more information.